R. v. Denning, 2017 ONCJ 381

CITATION: R. v. Denning , 2017 ONCJ 381 DATE: March 27, 2017 Information No. 0611-998-16-550-00 0611-999-16-92-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TYSON DENNING R E A S O N S F O R J U D G M E N T and R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE R. SCHWARZL on March 27, 2017 at ORANGEVILLE, Ontario

APPEARANCES: S. Duffey Counsel for the Crown D. Lent Counsel for T. Denning ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S ENTERED ON PAGE Reasons for Judgment 1 Submissions 9 Reasons for Sentence 12 Transcript Ordered: May 2, 2017 Transcript Completed: June 8, 2017 Ordering Party Notified: June 8, 2017

R E A S O N S F O R J U D G M E N T SCHWARZL, J. : (Orally) ... These are my reasons for judgment in the matter of the Queen and Tyson Denning . Mr. Denning faces trial on a single count of driving with excess blood alcohol. A trial was held before me in which there were three witnesses, two police officers and Mr. Denning, who testified on Charter applications brought on his behalf. The significant witnesses in this case are Constable Tardif and Mr. Denning. At the outset, I remind myself that Mr.

Denning is, of course, presumed innocent of these charges and, to be found guilty, the Crown must prove his guilt beyond a reasonable doubt. That burden never shifts in the course of a trial. I also have to say that’s important that I can take some, all or none of what any particular witness has to say. I have to take it all into account and with that having been said, I’ll proceed with the reasons. On May 10 th , 2016, the defendant, Tyson Denning, was driving a friend home when he was stopped at a police roadblock set up on a rural road by Constable Jason Tardif.

After speaking with the defendant and searching his car for drugs and alcohol, the officer made a screening demand on Mr. Denning. Once an approved screening device was delivered to the scene, the defendant complied with and failed that test. He was brought back to the police station and after speaking with a lawyer he provided two suitable samples of his breath directly into an approved instrument. Testing showed that his lowest of the two tests revealed a blood alcohol concentration of 130 milligrams of alcohol in every 100 millilitres of blood. Two issues arose at trial.

The first is whether the defendant’s right to counsel was violated while waiting for the screening test to take place. The second issue is whether the screening test process itself was conducted lawfully. In deciding these issues, I have carefully reviewed the evidence and I have considered that evidence as a whole. I also bear in mind the very helpful and careful submissions made by both counsel as well as the applicable legal principles. Issue Number 1: The matter of the rights to counsel . The defendant has failed to persuade me that his rights to counsel were probably breached.

Constable Tardif’s evidence was that he read the full and standard rights to counsel from his police notebook. The defendant agreed that he was “given some kind of rights” by the officer before the screening test. There would be, of course, no other rights than rights to counsel to give at this point in the investigation. Constable Tardif said that Mr. Denning didn’t seem to fully understand the formal recitation of the right to a lawyer, so he said he explained it in simpler terms. The defendant agrees that the officer did explain it to him, but even then he didn’t understand.

The problem for the defendant is that he told the officer that he did understand by nodding and/or saying okay. The defendant said he did this because he “just wanted to move on with things”. On the totality of the evidence, I’m satisfied that Constable Tardif gave appropriate information to Mr. Denning regarding his rights to counsel while waiting for the screening device to arrive and that the officer complied with his duties in this regard. It is clear to me that the defendant was probably confused by what he was told, given the unique and certainly uncomfortable and tense situation he found himself in.

Nevertheless, for reasons personal to him, Mr. Denning chose to tell the police officer that he understood those rights. By doing so he did not meet his obligation to be reasonably diligent in asserting his right to counsel. Accordingly, his application under

Section 10(

b) of the Charter is dismissed. Issue Number 2: The lawfulness of the screening test process . With respect to the lawfulness of this process, there are, in fact, three sub issues. The first is whether the officer had a legal basis to

detain and investigate Mr. Denning at all; the second is whether Constable Tardif had legal grounds to make a screening demand; and finally, I have to decide whether the screening demand was made forthwith as required by the Criminal Code . I find that Constable Tardif did have a legal basis to stop and investigate Mr. Denning. Both the officer and the defendant agree that Mr. Denning was speeding when he approached the roadblock, although Constable Tardif recalled Mr. Denning going faster than Mr. Denning remembered.

The act of speeding without anything else gave Constable Tardif the right to stop and investigate Mr. Denning. Furthermore, it is clear that Constable Tardif was in the lawful execution of his police duties when he set up the roadblock which was designed to stop traffic from interfering with a movie shoot a short distance away. I also find that the officer had lawful grounds upon which to make a screening demand. The law requires the police to have a reasonable suspicion that a person was operating a motor vehicle with alcohol in his body in order to require that person to participate in a screening test.

This is a low standard but higher than a hunch, yet lower than proof of any wrong-doing. In-chief, Constable Tardif said that his demand was based on a number of factors, two of which were that the defendant was driving and that his breath smelled of alcohol. There is no doubt whatsoever that the defendant was driving. There is no doubt that he was driving fast, whatever the actual speed may have been. Even he acknowledged it was more than the speed limit.

As to the presence of alcohol in the driver’s body, the evidence of the officer both in-chief and in cross-examination was that he was right at the driver’s window, speaking with Mr. Denning, and in this close position, was able to smell alcohol within the car and a slight odour of alcohol on the driver’s breath, despite the driver’s denial of drinking anything. Both the police officer and Mr. Denning agreed that the officer was at the driver door window. The defendant recalled Constable Tardif was within a foot or two of his face and Tardif said that he was even closer, having stuck his head into the car.

Either way, Constable Tardif was in an excellent position to make the observations he described, even if the passenger had been drinking, too. Perhaps decisively on this point, the defendant testified that he indeed, had been drinking prior to driving and had been untruthful when he denied it. This evidence corroborates the officer’s evidence of smelling alcohol on Mr. Denning’s breath. Therefore, lawful grounds existed to make the screening demand. In cross-examination, Constable Tardif stated that finding two empty beer cans in the trunk of Mr.

Denning’s car was integral to concluding that he should make a screening demand. The search of the defendant’s car pursuant to the Liquor Licence Act was illegal, and I excise this evidence from considering whether the officer had lawful grounds to make the approved screening demand. Accordingly, this is not a factor. Even if the search was legal, the location of beer in the car added nothing to the officer’s already reasonable suspicion, based on driving and the odour of alcohol on the driver’s breath.

There was plenty of evidence for the officer to reasonably conclude that the defendant had been operating a motor vehicle with alcohol in his body. He needed no other reasons to make a lawful screening demand and finding the beer cans was mere surplusage and not necessary, despite the officer’s evidence in cross- examination. Therefore, I find that legal grounds existed for Constable Tardif to make a screening demand. With respect to the third and remaining sub-issue, I find that the screening demand was made forthwith in the circumstances of this case.

It was vigorously argued by the defence that Constable Tardif was not a generally reliable witness due to the fact that he has falsified duty notes in the past. It was also argued that he was unreliable to the specific issue in this case, especially on whether the defendant was speeding and drinking, as well as whether he had any grounds to search the car. Due to the high degree of agreement between the witnesses on most of the issues in this case, I found Constable Tardif to be a generally reliable witness. For that matter, I found the defendant to be a reliable one as well.

His evidence confirmed much of the evidence of Constable Tardif on the issues I have reviewed to this point. The defendant submits that Constable Tardif’s search of the motor vehicle was not only illegal but unnecessary and that it unnecessarily delayed and, therefore, unlawfully delayed the making of the screening demand. The Crown conceded and I agree, that the search of the trunk was not authorized by the Liquor Licence Act . However, I find that the search based on the Controlled Drugs and Substances Act was lawful.

Constable Tardif said that he saw fragments of marijuana in three distinct parts of the driver’s area, being the floor, the seat and the pocket of the driver’s door. A photo of the driver’s armrest, taken from a vertical point of view, was made an exhibit at this trial. In this picture, there is no way to see the pocket door because it is shielded from view by the armrest above. The same photograph also shows, however, that one can see both the floor and parts of the driver’s seat. Constable Tardif disagreed that his point of view was the same as shown in the picture.

He said he stuck his face inside the door, whereas the defendant said the officer’s face was never closer than a foot or two. Mr. Denning denied having any marijuana in the car but did testify that the interior was dirty, whereas Tardif was certain that trace amounts of marijuana were visible when he used his flashlight whilst speaking with the driver.

Both witnesses gave what appeared to me to be honest evidence in describing these events. Just because one of them is wrong, doesn’t mean that either of them is lying. I found that Tardif reasonably believed that what he saw whether on the floor or the seat or elsewhere was marijuana. That is, it may well have been dirt but this does not undermine the reasonableness of his belief. The Controlled Drugs and Substances Act requires that a search can be made on reasonable ground, but it does not require that those grounds be, in fact, true.

Given the minute particles that he described it may have been reasonable to mistakenly confuse dirt for marijuana remnants, especially considering it was dark out and that a flashlight beam may well have provided less than optimal illumination in the situation. The officer was permitted by law to investigate more than one possible crime at the same time. Not finding any marijuana did not make the search unreasonable. The few short minutes taken to search the car did not render unreasonable the delay in making the screening demand.

The officer took no more time than necessary to investigate and eliminate another possible offence. In the totality of the circumstances of this case, the screening demand was made forthwith. As a result, the defendant’s Charter applications regarding the screening test process are dismissed because that process, I find, was lawful overall. Having dismissed all of the Charter applications, the breath test results shall not be excluded from the evidence. Therefore, Mr. Denning is found guilty of the single count on the Information: Driving with an illegal blood alcohol concentration.

Are the parties ready to deal with the question of sentence today? MS DUFFEY: Yes, Your Honour. MR. LENT: Yes, Your Honour. THE COURT: May I hear from the Crown first? MS DUFFEY: Your Honour, it’s the Crown’s respectful submission that a $1200 fine and a 12 month driving prohibition would be an appropriate sentence in this case. As Your Honour has found in your rulings, the breath readings were 100 milligrams of alcohol in 100 millilitres of blood. They are not statutorily aggravating readings, however they are high readings. Also, of note, Your Honour is that Mr.

Denning was speeding to the point where the officer, Officer Tardif, did apprehend that a collision may happen. I understand that his vantage point and his ability to make observations may have been compromised given the, given the darkness that, that gave rise to these events. Your Honour, those are my submissions that given the, the height of the readings that an elevated fine above the minimum $1,000 would be appropriate and that the statutory 12 year driving prohibition would be appropriate. Mr. Denning does not have a criminal record.

He does not have a related driving record for, for speeding or other related HTA offences. THE COURT: Excuse me, just a moment, please. Yes, Mr. Lent, may I hear from you, please? MR. LENT: Much of what I tell you you’ve heard, but I’ll mention again that my client’s 24 years of age. He’s a single person. He resides in East Garafraxa at a residence, 6 Brookhaven Crescent, with his parents, and you probably recognize that both his parents have been with him... THE COURT: Yes. MR. LENT: ...each and every time he’s been in court and they’re here again today.

He’s presently employed with a company called True Builders. He does framing and carpentry and makes about $17 an hour. He has successfully obtained a degree from the University of Guelph in Environmental Geography. After that he went to Fleming College in Lindsay, and obtained a degree in Water Management which is really what he’s wanting to pursue and he tells me he thought he had good opportunity for employment in this field; but had to hold off until the determination of this event because a driver’s licence was required for this new job that he was wanting to get into.

He’s been driving since age 16 and, as my friend says, he has no record. So, his employment opportunity, hopefully will remain but he will have to postpone that for a significant period of time now. So, having said all of that, I know my friend is very close to the minimums in her submissions in any event, Your Honour, and I know you can’t go below the thousand dollar mark. I’d ask you to consider that mark. I respectfully disagree with the Crown as far as my client almost coming into a collision. THE COURT: You need not make any further submissions there. It was not an issue I needed to resolve.

There was a conflict in the evidence as to the degree of speed. I’m not going to take that into account as an aggravating factor. MR. LENT: And even the police officer said my client stopped 20 to 30 metres from... THE COURT: Yes. MR. LENT: ...from his police car. So, subject to any questions you might have, Your Honour, I’m going to ask you to consider the minimum, so those are my submissions, Your Honour. THE COURT: All right. Maybe I’d better hold off until I pass sentence to ask time to pay. As you know in this sort of case, whatever it is, I’m prepared to give up to a year if that helps.

I understand in order to get reinstated he might need to get that paid sooner, but I’m prepared to give him whatever time he feels he needs. MR. LENT: Yes, Sir. You’re correct. In order for him to start the process of getting his licence back through the interlock scenario, pardon me, he’ll have to pay the fine in any event. So.... THE COURT: Right. Let me ask you one other question. Does he have his licence with him today, and if so, could you please

turn it in for him? MR. LENT: So I’m going to hand the licence to the clerk, Your Honour. THE COURT: Yes, thank you. Mr. Denning, before I pass sentence, I’m obligated to give you an opportunity to say something directly to me if you want. You don’t have to, but if you do, I’ll take it into account. If you don’t, I won’t hold it against you. Is there anything you want to say? TYSON DENNING: I just feel terrible and that’s about it. I apologize. THE COURT: All right, thank you. You can be seated at this point. R E A S O N S F O R S E N T E N C E Schwarzl, J. : (Orally) I found Mr.

Denning guilty after trial of one charge, being driving excess blood alcohol. The lowest of the two readings was a significant amount over the legal limit. The legal limit for driving with blood alcohol in one’s system in this country is 80 milligrams of alcohol in 100 millilitres of blood. You were 50 over that. You know, that’s more than 50 per cent over the limit. If you were to have to pay 50 per cent on a credit card on interest, you’d say that was really high. Or if you got a 50 per cent rate of return on an investment, you’d say that was awesome. So, the readings were high; there’s no question.

It’s somewhat concerning to me as well that you weren’t intoxicated by that either. I don’t know if you’ve got any health problems with alcohol or not, but I suggest your strongly re-evaluate your relationship with alcohol and whether or not that’s something that’s causing you health problems as well as social problems as it clearly did that night by finding yourself in this situation.

You come before the Court as a responsible young man, well educated, supported by good parents who love you very much and it must be really difficult for you to have to be here in public, facing this at all, but having them with you no doubt both helps and hurts because, on the one hand it’s helpful because they’re offering their support, but on the other hand, it must be difficult for you with this result to have them present and to have heard about your behaviour that night. I am confident that it’s unlikely that you’re going to be back here.

This is an expensive lesson that you’ve learned and I am just grateful that no one was injured and there was no property damage. An additional aggravating factor in this case is that you did have responsibility for a passenger and it is fortunate given the windy, treacherous road that you were on that you were able to maintain control of it. Even in the best of times even a sober driver at night can have a tricky time going along Mississauga Road in the area of the Ski Club. Parliament has decided to impose minimum punishment for this kind of case, being a thousand dollar fine and a one year loss of licence.

Do you know what the maximum punishment is in a case like yours where nobody got hurt and nobody died? TYSON DENNING: I’m sure it’s a lot worse. THE COURT: Well, it’s a maximum $5,000 fine and up to a year and a half in prison and losing your licence for up to three years. Minimum penalties are there for reasons of public policy. It’s meant to send out a strong message of denunciation to the driving community that this sort of consequence is going to be significant, but it’s also a minimum and minimum penalties should be reserved for minimum situations. This is not a minimum situation.

I can’t and I won’t punish you for having a trial. It’s your constitutional right to do so, but you don’t get mitigation of sentence either in these circumstances. You also had significant blood alcohol concentration. You had carriage of a passenger. On the other hand, you’ve come before the Court as I’ve said as a first and hopefully last time offender and you’ve got real good prospects for your future. In the circumstances, I’m of the view that the appropriate sentence is as follows:

There will be a conviction registered. A fine will be imposed of $1,200. There is a 30 per cent crime tax or Victim Surcharge of $360, for a total of $1,560. I will give you one year to pay the fine and the surcharge. As Mr. Lent will explain to you, you have an opportunity to get your licence reinstated within, I think six months from now, but in order to do that you’ll have to meet the criteria of the Ministry of Transportation Ignition Interlock Program, which likely includes having paid those amounts in full in advance, but, being that as it may, I’m still going to give you a year in case you need it.

I do have to warn you, though, that if you don’t pay the fine and surcharge within the year I’ve just given you, there will be an enforcement step taken which probably means you’d be suspended from driving indefinitely until it’s paid and/or you might even go to jail for non-payment of the fine. Do you understand? You’re nodding yes. TYSON DENNING: Yes, that’s correct. THE COURT: If, in the unlikely event, it’s okay, I just needed you to communicate yes or no, that’s fine; you stay put. I know you’re upset right now.

In the unlikely event that the year just isn’t enough, you’re welcome to apply to me in writing for an extension. I’ll give you one if you do two things: The first is, give me a chart of what you paid and when. TYSON DENNING: Okay. THE COURT: And I want to see good faith payments, even if it’s 50 bucks a month, just to show me that you were at least trying. And then, secondly, give me a real good reason why you just couldn’t do it -- you lost your job or you got sick or something happened. TYSON DENNING: Okay.

THE COURT: With respect to the driving prohibition, as I said, it’s a minimum one year and a maximum three years. Both counsel urge that I impose the minimum and I do. In your case you will be prohibited from operating a motor vehicle on any street, road, highway or other public place in Canada for a period of one year. It is an offence to drive in violation of that order. If you are caught and found guilty of driving while disqualified, you could go to jail and you will be subject to a consecutive driving suspension and possibly a further driving prohibition. Don’t do it.

As I mentioned already, you may be able to get your licence back during the next year, if you successfully meet the criteria of the Provincial Ignition Interlock Program. That’s between you and the Ministry. No doubt Mr. Lent can guide you through that maze. I know that there is information on the Ministry of Transportation website and available at any licencing office. The sooner you get on that the better because there are waiting periods for some parts of this process. Do you have any questions about the sentence? TYSON DENNING: No. THE COURT: Mr. Lent, do you have any questions? MR. LENT: No, Sir. Thank you.

THE COURT: Ms Duffey? MS DUFFEY: Your Honour, would I be correct in understanding that there is also a Provincial Offences Information before the Court? THE COURT: Mr. Fetterly, I understood, took the position of withdrawing that. If he hadn’t already, I don’t recall if it had been withdrawn. Mr. Lent, as I understand, your client later produced some proof of insurance or, either way, Mr. Fetterly didn’t seem interested in proceeding on that, right? MR. LENT: I, I agree with that, Your Honour, yes. THE COURT: Yes. MS DUFFEY: And I agree with that as well. I would ask it be marked withdrawn if it hasn’t already.

THE COURT: All right. At the direction of the Crown, the insurance charge is dropped. Mr. Denning, before you leave the courthouse, you’ve got to go upstairs to the main office on the second floor and wait for the paperwork to catch up with you. TYSON DENNING: Okay. THE COURT: Once you get your copies of it then you can leave. I wish you well and I want to say again how important it is for the Court to see that your folks are here and have taken the time and the care to be here for you throughout this difficult period. Good luck to you and thank you, Mr. Lent. Thank you, Ms Duffey. MS DUFFEY: Thank you. MR.

LENT: Your Honour, do you mind if I step into the hall with my client for a few minutes? THE COURT: Oh, please. Take whatever time you need and we will resume court whenever you’re ready. I’ll just go to my office after I’ve signed the paperwork. All right?

the paperwork. All right? MR. LENT: Thank you, yes. MS DUFFEY: If Your Honour doesn’t mind, I’ll also step out for a few minutes. THE COURT: Pardon me? MS DUFFEY: I said if Your Honour doesn’t mind, I will also step out for a few minutes, but I see that you’re also.... THE COURT: And I’m not sure if you kind gentlemen are, but maybe you want to wait out in the hall, too, for a few minutes. We’re just going to take a brief time out. Thank you. We’ll resume court when recalled. MS DUFFEY: Yes, Your Honour.

WHEREUPON THIS MATTER CONCLUDES Form 2 Certificate of Transcript Evidence Act, (Subsection 5(2)) I, Louise Knox , certify that this document is a true and accurate transcript of the recording of Regina v. Tyson Denning in the Ontario Court of Justice , held at 10 Louisa Street, Orangeville, Ontario , taken from Recording No. 0611 101 20170327 092520 6 SCHWARRI.dcr, which has been certified in Form 1.

June 8, 2017 ELECTRONICALLY CERTIFIED, LOUISE KNOX, ACT (Date) (Signature of Authorized Person) **This certification does not apply to the Reasons for Judgment and the Reasons for Sentence which were judicially edited.